Articles Posted in Drug Crimes

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In Florida, criminal defendants can face significant challenges during their trials, particularly when police testimony exceeds the boundaries set by prosecutors’ questions. Such overreaching testimony can unfairly influence a jury, leading to potentially unjust outcomes. Recently, a Florida court of appeals addressed a defendant’s challenge regarding broad police testimony, discussing how such situations are handled and when a mistrial might be considered versus when a curative jury instruction can be deemed sufficient.

According to the facts discussed in the recently published opinion, the case involved a defendant charged with trafficking methamphetamine after an undercover operation. The undercover officer arranged a controlled buy, during which the defendant sold him 14 grams of methamphetamine. At trial, the defendant admitted to the sale but claimed entrapment, arguing he was coerced into selling a larger quantity than he intended. Despite his defense, the jury convicted him of trafficking.

On appeal, the defendant argued for a mistrial based on the undercover officer’s testimony, which he claimed went beyond the scope of the questions asked and included personal interpretations of his statements. The defense objected to parts of the recording from the controlled buy, citing the irrelevance and potential prejudice of the officers’ crosstalk. They contended that these elements unfairly impacted the jury’s view of the evidence.

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In a recent case before a district court in Florida, the State asked the court to reconsider the lower court’s decision to suppress evidence in a drug case. The lower court had originally ruled that the defendant’s motion to suppress should be granted, given that several police officers executing a warrant failed to knock and announce their presence prior to entering his hotel room. On appeal, however, the higher court found that the officers did not actually need to knock before entering, thus granting the State’s request and remanding the case back for further proceedings.

Facts of the Case

According to the opinion, the defendant in this case was residing in a hotel room, one that had sliding glass doors. While he was in the hotel room, officers came looking for him in order to execute a warrant for his arrest. Upon seeing him inside the room, the officers noticed the defendant had narcotics and drug paraphernalia around him.

The officers entered the defendant’s room and arrested him. The State later charged the defendant with possession of a controlled substance. Upon being charged, the defendant filed a motion to suppress, arguing the officers should have knocked and announced their presence before entering the room. The lower court granted the motion, and the State promptly appealed.

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In a recent case before a district court in Florida, the defendant asked the court to reconsider his convictions for trafficking in cocaine and conspiracy to traffic in cocaine. After the defendant was charged with drug-related crimes, his case went to trial, and a jury found him guilty as charged. On appeal, the defendant argued that the confidential informant working against him illegally offered sex in exchange for his criminal activity, therefore coercing him to sell cocaine and leading him to his guilty conviction. Reviewing the record of the case, the district court eventually denied the defendant’s appeal.

Facts of the Case

According to the opinion, the defendant in this case met the confidential informant several years ago without knowing she was secretly working for the government. The defendant and the informant became close friends, and the informant supposedly told the defendant that they could be sole mates. Over time, the defendant began trusting the informant, and he believed they were in an intimate relationship.

After several months of this relationship, the defendant brought the informant with him to a meeting in which he would exchange money for a kilo of cocaine. Unbeknownst to the defendant, the drug dealer was actually an undercover officer, and eventually, the State charged the defendant for his participation in the cocaine dealing.

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Nine times out of ten if a person is indicted in a Federal criminal case, they will most likely be charged in a conspiracy.  Generically, a conspiracy is nothing more than an agreement to commit some type of criminal act.  18 U.S.C. 371 is the most general form of conspiracy and requires the following to be proven in the 11th Circuit:

  1. The existence of an agreement to achieve and unlawful objective;
  2. A defendant’s knowing and voluntary participation in the conspiracy;
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It’s that time of year again folks! Downtown Tampa and Bayshore Boulevard will be packed this weekend with pirates doing all sorts of piratey things. The rum will flow, the booty will be plundered, yards will be peed in and some of us might even get arrested! While part of this sounds like perfectly reasonable pirate behavior, the eight different law enforcement agencies working this weekend and many local homeowners might have a slightly different take on our beloved festival. While I can personally attest that our little celebration is a blast, there is no disputing that some take it a bit too far, only to find themselves sitting pretty in a drunk tank until they can be transported to the Hillsborough Hilton. No it’s not ok to pee on that road cone or invite yourself in to Derek Jeter’s fantastic new house. With each passing celebration local law enforcement has tightened the belt on the festival and worked to contain the alcohol to specified locations. Take your drink outside of those “wet zones” and you could find your wallet to be a bit lighter.

No, the police really aren’t looking to give you a hard time at Gasparilla, nor do they really want to mess with having to arrest your royal drunkenness. Having attended many a Gasparilla parade I’ve witnessed with my own eyes a fiasco or two where an otherwise fine lad was led away in silver bracelets. Generally the police made contact with him and asked him to go back to a wet zone or simply asked him to cool it on some other form of jackassery. I’ve also received a ton of phone calls from those who got a little loud and rowdy and ended up in the clink. Honestly, at this point it’s kind of difficult to get arrested at Gasparilla unless you’re just asking for it. If you drink outside of the wet zone you will likely be fined $75 for a first offense, $150 for a second, $300 for a third, and $450 if you are ridiculous enough to do it a fourth time. While no one wants to be fined during Gasparilla, be happy Tampa passed this ordinance as it may prevent you from going to jail. It’s the lesser of two evils people. If you’re so hammered that you can’t stand up or speak, you’re likely going to be arrested for public intoxication, miss out on the rest of the fun, and will enjoy the thrill of sitting in the office of a Tampa criminal attorney next week. What if you have to pee? While at times the bush in your immediate field of vision might offer a reasonable place to relieve yourself, you are not in the backwoods of Alaska, nor are you on an airboat in the Everglades miles from civilization. You’re in the fine city of Tampa, home to the worst football team in the NFL and the best chicken wings of all time. I’m looking at you Hattrick’s! Hose that bush down and you could find yourself charged with a violation of Tampa City Ordinance 14-52 for public urination, thereby subjecting yourself to a $500 fine and 60 days in jail. You don’t have to pee that bad. What if that sweet babe with the sock on her head and 356 strands of beads around her neck (I wonder how she got those??) invites you to the aforementioned pee bush for a little romantic “live action?” Think twice hombre! If you make a baby in public you’re going to go to jail. Scientific fact. No, the wet zone won’t provide a loophole so don’t call me Monday and ask. No one, and I mean no one, wants to see what either of you are packing. If said package is out, soaking up the sun, you will be arrested for indecent exposure, charged with a first degree misdemeanor and come sliding into court just under the sex offender cut off.
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In nearly every Federal drug charge I’ve handled in Tampa, my client has been charged as part of a Federal drug conspiracy. Depending on my client’s role or position within the alleged conspiracy, he or she is often approached, through me, to cooperate with the United States Attorney’s investigation in an attempt to bolster their Federal prosecution of co-conspirators or to seek information on other conspirators higher up the in the criminal organization. Depending on the stage of the investigation and very likely my client’s role, the Feds may defer on seeking a Federal Indictment against my client. Considering the Indictment system of charging a crime is a mechanism meant to protect the suspect from unsubstantiated prosecution, there could be risk in waiving the right to a Grand Jury. That said, there could be benefit in waiving that right as well…

Federal Rule of Criminal Procedure 7 states that an offense other than criminal contempt must be prosecuted through a Grand Jury Indictment if the punishment for the offense is death or by jail for longer than one year. In other words, we the people have the right to have a Grand Jury hear charging evidence against us in all Federal felonies. Under Federal Rule of Criminal Procedure 7(b) a defendant may waive a Federal Indictment and be charged by an Information so long as that waiver is made in open court and the waiver of the indictment is made after the defendant has been advised of the nature of the charge against him or her and has been fully advised of their rights. This is generally accompanied by a written waiver of a Federal Indictment that is then filed with the applicable Court.
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Polk county resident David Scott Schultz, 32, delayed his arrest last week when Polk County deputies attempted to serve a search warrant on his residence for suspicion that Shultz was using his home as a marijuana grow house. According to deputies, after knocking on Shultz’s door and speaking with him he refused to allow them in. After some time went by deputies smelled the odor of marijuana and ultimately learned that Shultz simply wanted to smoke one last joint before being taken in to custody. Shultz eventually opened the door and was taken in to custody without incident. Shultz was arrested on charges of maintaining a dwelling for drug manufacturing, cultivation of cannabis, possession of cannabis with intent to sell and possession of drug paraphernalia.

Mr. Schultz has pretty run of the mill Florida drug charges though he could benefit from the help of a Polk county criminal lawyer. Shultz’s charge for being in possession of a dwelling used for drug manufacturing is no doubt his biggest concern when defending against these charges. This Florida crime is a second degree felony punishable by up to 15 years in the Florida Department of Corrections. Florida statue 893.1351(2) makes it a crime for a person to knowingly be in actual or constructive possession of any place, structure, or part thereof, trailer, or other conveyance with the knowledge that the place…. will be used …. for the sale of a controlled substance, as provided in s. 893.13; or for the manufacture of a controlled substance intended for sale or distribution to another.
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The vast majority of the time if one is charged with a Federal crime they are very likely subject to a considerable amount of incarceration. In some situations it’s possible for a hard working Federal criminal attorney to try their client’s case and earn an acquittal. Unfortunately for a defendant, Federal criminal cases tend to be well investigated and by the time the individual is charged, the United States Attorney has a nearly airtight case with which to work. But what about the minor crime committed by one with a squeaky clean criminal history where the crime is seemingly victimless? State criminal courts have pretrial diversion but do our Federal courts? Surprisingly to some, the answer is yes. So what does it take to get into Federal Pretrial diversion?

As with many facets of a Federal criminal charge, the United States Attorney handling the case has a great amount of discretion as to whether to offer diversion. Should you be lucky enough to have a reasonable and compassionate US Attorney, you must still meet the criteria found within the United States Attorney Manual section 9-22.100. In order to qualify for Federal Pretrial Diversion the US Attorney must choose to divert you should you not: have two or more prior felonies, be a public official or former public official accused of an offense arising out of a violation of the public trust, accused of an offense related to national security or foreign affairs, be accused of an offense that under existing department guidelines should be diverted to the State criminal court system. Should you be lucky enough to get into diversion you will be there no longer than 18 months should you complete the program and will still be required to pay any restitution owed.
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As criminal attorneys if we’ve heard it once, we’ve heard it a million times, “the defendant spontaneously admitted to the crime and also told me who is responsible for John F. Kennedy’s assassination.” Ok, maybe not to that extent, but I can’t tell you how many times I’ve read police reports, be it a DUI allegation or a Federal Wire Fraud report, where there is language that my client made admissions. Obviously many people get scared when they’re arrested and sing like canaries, but what about those that may be a little more “experienced” with the system and would never utter a peep to a police officer? What about those instances where a person “spontaneously” told the officer during a traffic stop that they have 14 tons of cocaine stashed in their garage 40 miles away? How can we as attorneys, or a jury really know what happened or what was said between the officer and the defendant without hearing a recording of the conversation?

I recently tried a Federal drug case where a DEA agent recorded in his written report that my client made certain statements that could be viewed as admissions and he later testified as to the same. Despite working for a Federal law enforcement agency with more than enough resources to buy recording equipment, this conversation was not recorded. As an attorney, without the luxury of any audio or video recordings to review, all you can do is try to chip away at the Agent or Officer for not making an effort to record despite the means to do so and attempt to the point across that one who is investigating a case certainly has an interest in the outcome and therefor has some bias. Unfortunately, often a showing of bias from the standpoint of a law enforcement officer and the fact that he didn’t record the conversation isn’t enough to combat Big Badge’s testimony. This happens every day in Courtrooms all across the country and the only way to combat it is to attempt to cross examine the witness and hope that they are taking their oath seriously. Sometimes they do, sometimes they don’t. I’m not alleging that this agent wasn’t truthful in his testimony, however had the conversation been recorded my job would have been that much more difficult as it’s a hell of a lot harder to impeach a recorded conversation than a conversation that’s retold by a witness.
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Ask any Tampa Federal Criminal Lawyer how they feel about Federal drug sentencing and I have little doubt the response you receive would be a groan and a look of disgust. Federal drug sentencing, for whatever popular and illusory reason the Federal Sentencing Commission chooses to hang their hat on, has been and is outrageous. For every crime there must necessarily be some kind of punishment otherwise the system is useless and we can cue anarchy. However, when one with little criminal history and no real ties to a cartel or gang takes a shot to make five times his yearly wage for a noble albeit illegal reason and ultimately is sentenced to a 10 year minimum mandatory prison term, have we really achieved anything? Should a drug sentence really be higher than a crime of violence or a sex crime against a minor? It doesn’t pass the smell test but it happens all the time. Title 21 of the Federal Criminal code details minimum mandatory sentences and it has been a leverage point of Federal Prosecutors since its inception.

Not only can a defendant be charged with a violation of Title 21 that calls for a mandatory minimum prison sentence, in certain instances the defendant’s sentence potential or mandatory minimum be increased because of a criminal history to make a minimum mandatory completely exorbitant. If the US Attorney’s office pops your man with a nice little 851 enhancement you are now staring down the barrel of a potential of a 20 year minimum mandatory or mandatory life sentence depending on the number of prior drug felonies he has. If the defendant was facing a 5 year minimum mandatory he is now looking at 10 and if there is no minimum mandatory, his statutory maximum increases. You can run but you can’t hide from the 851… All for one prior drug felony. Granted this enhancement is not automatic but it is wholly discretionary for the Federal Prosecutor. Depending on which Prosecutor is driving the bus, you could be in for a bumpy ass ride. This enhancement isn’t even inclusive of a Career Offender enhancement, and animal that has been criticized as not being based on empirical data by the Supreme Court in Kimbrough v. US, 552 U.S. 85, 109-110 (2007). When one is saddled with both an 851 and career offender enhancement his Federal criminal lawyer will earn a few more gray hairs.
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Mayberry Law Firm
3902 Henderson Blvd, #208-136
Tampa, FL 33629
Phone: (813) 444-7435

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